Sunday, October 28, 2012

Can You Sue A Wine Writer?

I go crazy hearing about all the idiotic lawsuits that get thrown out there. One such suit was Overton vs Anheuser-Bush in which the plaintiff accused Budweiser of false advertising by using suggestive imagery like "scenic tropical settings, beautiful women and men engaged in endless and unrestricted merriment" ... ostensibly because they were drinking Bud Lite beautiful women would just come to life from their imaginations. I know every time I pop a bud open, I get a door knock. Doesn't everyone?

Then I saw [this story] about a critical on-line review of a doctor. Apparently the defendant didn't like the doctors bedside manner amoung other things. The good doctor didn't like the review and wasn't going to take this lying down, so he sued to have it removed. Of course the brilliant doctorended up promoting the review more than the patient ever could have hoped. But the whole things got me to wondering if anyone has ever successfully sued a professional wine writer over a scathing review?
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While I'm not an attorney, I believe a suit could be brought for monetary damages if a review like that were proven untrue, the writer knew it wasn't true, and it established a loss in brand or current sales. Of course proving someones own subjective opinion was knowingly wrong isn't easy.

And while we're on the subject, what about all the consumer reviews in Blogs YELP and other on-line consumer sites? Has anyone been sued for saying bad things about a wine in the Wild West of the Web? And a related question: What should you do about those types of reviews?

This first article I referenced was about a doctor in Minnesota who received a bad on-line review on a web site that ranked doctors. It included a comment that said the good doctor fully lacked any bedside manner. The son of the patient posted the comments on-line and rather than ignore them, the Neurologist confirmed he's a twit by suing the young kid. Now its gone all the way up to the Minnesota Supreme Court! Seems like a simple case to me since truth is an absolute defense: (If someone said the doctor was a twit and he proves to be one, thats not something that can be litigated.)

So what about wine? Have wine writers ever been sued? The answer is yes. I found the following in the place where all truth is housed, Wikipedia:

Parker reported that "the Faiveley wines tasted abroad would be less rich than those one can taste on the spot" In other words, Parker accused Faiveley of cheating. Faiveley sued Parker for libel. In February 1994 Parker was requested to appear in front of the Paris superior court. The case was settled out of court. It was eventually discovered that the difference in taste that Parker identified was due to improper storage of the wine at the American importer's warehouse, causing the wine to be cooked.

I can't say that would have been the kind of suit that would have been successful in the USA. It was litigated and settled in France but never got to trial. It would seem from the quote that the comment was truthful though (the wine was cooked). So was there ever something that could have been litigated successfully in that case? I am probably missing some of the details and bet someone has them out there and will add them in the comments for all our edification. (If you remember that situation please include all the juicy gossip below, but only if you know the gossip is true.........)

What about YELP? What if someone says your wine or their tasting room experience sucked on a YELP review? Can you sue them? This is what YELP puts in their Usage License (....that's that little box you check that says you actually read the 16 pages of legal crap so you can join the site. Its the one before the box you forgot to uncheck that says they can use your personal information for anything, and you want to receive all the SPAM from their site.):

You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.

Well that's scary language. It makes you wonder why anybody posts a consumer review? In fact there have been many suits brought by different parties for comments posted on YELP as well as suits where YELP was named for hosting those comments. I didn't see any of them that went to trial and were victorious but maybe someone knows of an example. More likely the majority of those suits are filed to "slap down" the comments themselves versus actually going to court.

Here is a reveiw from a consumer who rated a tasting room on YELP:

Blech on all levels. I spit out most of the wine and didn't like the
attitude we got from the woman working there, who admitted at the end
she had just started working there and had no training, so she couldn't
answer any questions about the wines. Nice.

The one wine I did
like the most was incredibly overpriced and in no way worth it. If your
hotel gives you free passes to this place, as they did for us, try to
trade them in for somewhere else...

What should you as owner do with something like that? YELP does have a section for a comment from the owner in the review. While the owner may have elected to not comment, its also possible she didn't see it and if so, missed out on direct consumer feedback and an opportunity to make something right for someone who had a bad experience.

The next area that comes to mind is Blogs like this one. I'm pretty certain the law is still being written on Freedom of Speech in the blogosphere, and have to believe there have been many suits threatened or advanced even in wine blogs. I did find one curious suit filed from anonymous comments made on [The Gray Report Wine Blog.] The blogger himself wasn't sued, just someone who commented.

So what do you do with negative reviews? Probably a few things:

When you get negative comments from a professional reviewer, litigation or the threat of litigation might slap down the comments but it's just as likely that it will make the problem worse with a possibility of them going viral on the web. Practically speaking, its more of a PR nightmare and not worth suing, outside of some extreme set of provable facts. Just let the review go and move on.

The same can't be said for on-line comments. Negative comments on sites like YELP should be addressed in a respectful manner and all the advice I get from people in Social Media suggest that you need to have a way to make sure you are keeping up with those comments. If you don't have that, if you aren't listening to what is being said about your brand on social media you are really asleep at the switch. As a starting point, I'd recommend signing up for the free service from Vintank which will deliver an email to your desk each day with all the comments from the interwebs. You can find that service here: Vintank Social Connect

Blogs are often a place where comments can be debated. You can ignore the comments, try and contact a poster with a direct message to manage the remarks, or chose to weigh in with comments of your own. In a blog that can shift a debate and encourage others with your point of view to log in and speak up for you. The downside is you may also encourage others with a similar negative perspective to jump in as well. If you do jump into the discussion, a critical point is authenticity. Never log in as "Anonymous," never have someone else from your winery pretend they are a consumer, and never sign in as someone else after posting a rebuttal to give added weight to your perspective in the debate. Those who comment are perceptive and something innocuous like that can have even more damaging impact.

If you don't have something nice to say, at least make sure you say it signed in as Anonymous because its harder to sue Anonymous.

That's it for this week. I guess I'll stop promising to not write on Sundays while we're producing the State of the Industry Report since this is the second week in a row I decided to write something anyway.

Regarding the report, we always start the process with a survey of industry conditions. If you are a winery owner, this is the last week for you to participate in the [Annual Wine Conditions Survey]. Participants get exclusive research and analysis that can be used in your 2013 planning process. Its only a 5 minute survey. About 500 wineries annually participate so please take that 5 minutes and offer your insights. You will get a very good return on your investment of time.

Comment away if you have experience with monitoring, replying to, or litigating negative wine reviews. Offer up your own thoughts about dealing with these situations. And if you have more legal experience than me on this subject (I have virtually none) feel free to enlighten the community on the current thinking in the legal environment that pits consumer or professional reviews against Free Speech.

19 comments:

As a sometimes winemaker who has submitted wines and gotten some great reviews and "less than great" (an 85), I think one has to take them with a grain of salt - I don't believe the reviewer intended any harm or disrespect - that's his job. And, frankly, I think it would be very petty to sue. Having said that, I think our society is so litigious that we will eventually see reviews of any type go by the wayside. I have often wanted to post bad reviews of a restaurant, hotel, or otherwise, but mostly refrain for fear that I might be sued. And, I believe that is a pretty sad statement. People need to chill out. Obviously if something is blatantly wrong and there appears to be an attempt to harm a wine, hotel, restaurant, otherwise - but I have seen little of this - at least among professional reviewers. But, yes, to answer your question, I think you can sue and believe eventually we will see more of this type of litigation...

Thanks Anonymous. Appreciate the insights. I hope you are wrong and we move toward more freedom of speech. That said with all liberties, there are responsibilities and we don't need overreaction on consumer reviews either as that would ruin their usefulness too.

You are driving at a large issue we never seem to tackle and that's tort reform. There is a lot of money spent on keeping the status quo. Often people have a false belief that they can file a counter-claim for malicious prosecution if they are sued, but the legal hurdles required for that are so high, I can't remember seeing a successful prosecution of that. What might help slow down BS litigation could be to make the bar lower for filing malicious prosecution, and then put the filing parties in a place where they could easily have to pay for both sides of litigation and court costs if their filing is really a fishing expedition, was frivolous, really just a slap down suit, or a malicious reprisal.

You are correct though. My experience is anyone can sue anybody for anything, even if there is no real evidence or the smallest chance of winning. The courts are set up so anyone with the smallest possible complaint can bring suit and most judges will take the perspective that we'll let the court/jury decide.

There is still a great deal of work to be done on peoples right to free speech, freedom of the press, and the collision with the internet and the blogosphere.

The professional wine reviewers I know (myself included) tend to stick to the "If you can't say something nice..." rule. If we don't like a wine, we don't write about it. There are plenty of delicious wines out there to recommend without having to bash the ones we don't enjoy. Of course, it's a different story if the winery is doing something shady, trying to misrepresent its product -- then the winery should be called out.

Thanks for the post WB. It is rare that you see something that crosses the line in a professional wine review. I've seen some scores though that could damage a brand ... say a brand that should get mid-90's and gets a mid 80. Or a brand that catches a 60 or 70 point rating? What would you suggest a winery owner do with a negative review like that?

Rob, I know Spectator will sometimes re-taste wines that receive uncharacteristically low scores. I would suggest contacting the writer and politely asking if they might consider re-tasting it to see if they would come to the same conclusion. Sometimes you get an off bottle that's not representative of the wine's true character.If the writer just doesn't like the wine, that's a different story.

Rob, your analysis of libel law is spot on. If the person suing for libel is a "public" figure (and most wineries would be), he or she has to prove that the writer had reckless disregard for the truth when they wrote what they wrote. That means that if they say the wine smelled bad, as long as they genuinely thought it did, they're in the clear. On the other hand, if they wrote that it smelled bad, but knew that it didn't, then they have libeled the wine.

If the court decided a winery was not a public figure, it's much easier to prove libel.

Thanks for the post Ed. Sorry for the distraction. I'm not certain what you are seeing. There is only one slide bar on my screen (right side of the page) and I've never seen more than that nor had any other comments. I'm guessing since I dont see anything abnormal and I haven't yet had comments, I either don't understand what you are seeing, or there is a setting on your side that is creating more sliders than I see.

I must say, I almost didn't even click the link to this article because I thought it was probably idiotic, but was very impressed with the position, writing and especially research.

First of all, let's face it, there are so many words strewn across the internet, I can't see where anyone could show any "real" damage. Anybody with half a brain (and uses half of that) would never take one bad review of anything to heart. I usually use Yelp for restaurant reviews and if there is a 2:1 ratio of good to bad, I figure the bad ones are disgruntled employees, vendors or competitors. If, however, there are only good and bad I'm going with the bad and figure the good ones were set-up.

The Parker example is fabulous, but not to prove the point about suing writers. It more so shows what a horses ass Parker is and you can quote me. Faively is a great producer. If I got a bad bottle, especially one with bad storage, I'd want to taste another and finally go directly to the source. Bad storage is pretty easy to taste when the wine is cooked, except to Parker.

We all know Parker knows nothing about Burgundy and was basically thrown out and for good reason. But to denounce a producer like Faively without getting the facts is, well, criminal! Especially when you consider Parker's position in the world of wine criticism.

Rob: It's worth nothing that libel law in the US, France and the UK is very different. Michael Broadbent cooperated in the writing of The Billionaire's Vinegar, than sued in the UK and received a settlement. In the US, that case would have gone nowhere.

I'm unfortunately familiar with the truth that commenters on a blog, just as on Yelp, CAN be sued for libel in the US. I suggest that professional journalists will be difficult to sue successfully because most of us have had some kind of training. No matter how scathing a review of a wine is, it's not going to be libel as long as it's personal opinion of the flavors of the wine. I can say your wine tastes like stewed garbage and that's not libel, as long as I don't say that you're actually making it from stewed garbage. And even then I would argue that I was making a satirical critical statement and the courts would most likely agree. The US has a long history of scathing criticism of all types of endeavors defended as free speech by the courts.

It's in other areas of coverage that commenters can get in trouble (on my blog, it had nothing to do with the quality of the wine.) But that's not what gets most wineries riled up. Sorry.

Blake - thanks for the response. I was surprised to see any information about litigation on wine reviews, but found instead it extends into restaurant reviews and a host of other things. Obviously the public interest is enhanced by allowing a degree of freedom in opinion based reviews. Personally, I'd rather see some relief against those who file the slap-down type suits as that has the double negative of spinning up the courts, and limiting free speech.

In March 2008, Shellee Hale of Bellevue, Wash., posted in several online forums about a hacker attack on a company that makes software used to track sales for adult-entertainment Web sites. She claimed that the personal information of the sites' customers was compromised.

About three months later, the software company -- which contends that no consumer data were compromised -- sued Ms. Hale in state court in New Jersey, accusing her of embarking "on a campaign to defame and malign the plaintiffs" in chat-room posts.

In her legal response, Ms. Hale, 46 years old, claims she is covered by so-called shield laws that protect reporters from suits, because she was acting as a journalist and was investigating the hacker attack while researching a story on adult-oriented spam.

Bloggers are increasingly getting sued or threatened with legal action for everything from defamation to invasion of privacy to copyright infringement. . . . . There have been about $17.4 million in trial awards against bloggers to date, according to the Media Law Resource Center in New York, a nonprofit clearinghouse that tracks free-speech cases.

Many lawsuits are thrown out of court or settled before trial, but not before causing headaches for the accused. Though the likelihood of a plaintiff winning a lawsuit is not high, "you could go bankrupt" just from defending against them, says Miriam Wugmeister, a partner at Morrison & Foerster LLP and a privacy and data-security law expert.

. . .

SLAPPED WITH LAWSUITS

Civic gadflies and self-styled watchdogs who accuse local politicians and companies are getting slapped with lawsuits. People who post messages in chat rooms, online forums and blogs can be held liable for invasion of privacy or for making defamatory statements, which are damaging, false statements of fact.

A federal appeals court unanimously overturned a defamation award against a blogger Friday, ruling that 1st Amendment protections for traditional news media extend to individuals posting on the Web.

“The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities,” Judge Andrew D. Hurwitz wrote for a three-judge panel of the U.S. 9th Circuit Court of Appeals.

The panel said its holding was the first of its kind within the 9th Circuit but that other circuit courts already have extended protections for journalists to individual speakers.

. . .

The defendant, blogger Crystal Cox, was found not to have acted "negligently" or with "malice" against the plaintiff in the case.

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